Subsidiarity- a Legal
Principle to Limit International/ Supra-National Supremacy over National
Governance ?

Lessons from the EU-Debate
on Subsidiarity

gegenüber nationaler
Regierung ?

Lehren aus der EU-
Debatte über Subsidiarität

1. Introduction

Subsidiarity has been considered as a political and legal principle
against fascism and communism, at least in the west European sphere since
the late twenties/ early 30ies of the last (20th) century. The
principle of Subsidiarity had a revival after World War II in a modified
way when in some European countries the gone fascistic regimes had to be
replaced by new democratic constitutional orders, as in (Western-) Germany
or Italy. A the same time subsidiarity was applied an antagonistic principle
against formation of communistic governmental and social systems and the
establishment of the Iron Wall.

Recently, since the early nineties ( of 20th Century), the
principle of Subsidiarity experienced a considerable Renaissance in the
European Union due to a widespread political malcontent with the EU-member
states and their citizens cause by the continuos extension of EU-jurisdictions
with prejudice to the powers and jurisdictions of EU- member states and
their sub-entities ( e.g. federal states, local government authorities
etc.), not ever explicitly transferred by the EU-Treaties to EU level..
As in connection with this, many citizens in the EU-member states felt
subject to increasing bureaucratic pressures and burdens by the EU-administration,
the issue of subsidiarity was further extended to the aspect of a better
citizens involvement in EU affairs.

In various EU-documents subsidiarity appears in the text. As the meaning
of subsidiarity is vague, it has been for long time disputed, whether it
is just a political term or both political and a legal term. Since subsidiarity
appears in the text of the amended basic treaty, it juridical relevance
is beyond doubt, while the detailed content stays indefinite. Anyway subsidiarity
represents a far reaching political concept, how to cope with a disputed
distribution of powers between the supra-national body of the EU and its
member states..

This conceptual and historical background of subsidiarity rises the
question whether subsidiarity has a political and legal potential to be
extended to a world wide situation in which sustainable growth and development
require a rising co-operation between international / supranational organisations
and the involved national governments with their organisational levels
and sub-entities, which might be (semi)private or public . Relevant actors
in so far might be federal states, regions, counties, cities, communities,
social agencies , "quasi non-governmental organisations -so called "quangos".

This might be further be extended to the involvement of the single citizens
, who join into the co-operation for instance by taking over certain responsibilities
for proper self-help or through authorising their political representatives,
so that can be considered as in a wider sense as a part of a global, or
at least international or supranational network of powers, functions and
jurisdictions, which might be sometimes indefinite its juridical dimension,
but at least works within a certain framework of procedures, which might
as well reflect the principle of subsidiarity.

Under this various aspects, subsidiarity might be applicable as a legally
or constitutionally relevant principle to limit the virtual international
or supra-national supremacy over national governance including its various
sub-levels.

2. The philosophical and legal roots of Subsidiarity

The principle of subsidiarity is being applied in various political
and juridical contexts. Anyway, subsidiarity has theological, philosophical
and political backgrounds with strong roots going back to state philosophers
of the 15th century and later. In 1931 the principle of subsidiarity re-gained
actual relevance by the papal (social) Encyclica Quadragesimo Anno, which
was determined to counteract totalitarian and extreme liberal tendencies
applied at that time in fascistic and communistic countries.. Retrospecting,
it is highly disputed whether this Encylica has been successful in this
respect or not ( as many critics say), but, anyway this Encyclica permanently
put subsidiarity on the political, social and theological agenda until
today.

Coming from different liberal, anti-fascist root the issue of subsidiarity
played for instance a major role , when the new German constitution (Grundgesetz-GG)
became adopted in 1949. Though it was not explicitly mentioned in the text,
it was undisputedly the implicit concept behind various constitutional
regulations, which gave for instance constitutional protection for individuals
and social entities, as the family is. Only when the relationship of the
federal Government and the federal states Governments with respect to European
Community had to be more precisely to be addressed by a later (1992)amendment
of the constitution by introducing Art. 23a GG, the principle of subsidiarity
became explicitly mentioned.1

The explicit reference to "subsidiarity" in the German Constitution
goes back to intensive discussions on future of the European Community/Union,
which since the beginning 90ies of the last ( 20th) Century
continuously addressed the principle of subsidiarity as a major political
and legal issue on the principal EU conferences dealing with the amendment
of the EU-Treaties. These are in particular the conferences of Maastricht(
1992), Amsterdam(1997) and Nizza (2001) which passed major treaties amending
the original basic treaties of Rome in an un-precedented way.

So, more and more, subsidiarity has become ( more recently together
with the principle of proportionality) a major issue in documents on governance
in the EU 2 and in the discussion of a future EU- constitution.

3. Subsidiarity - general and specific meaning
of the term

There exists no clear definition, what core concept of the principle
of subsidiarity really is. In a way it is related to a range of major constitutional
principle, in particular to federalism, to democracy and to basic human
rights. In particular subsidiarity is less obligatory its political and
juridical consequences respective to the loss of sovereignty which the
member states had to face if the EU would dispose on a federal structure.
So, subsidiarity might be considered in a way as a "soft" edition of a
federalistic structural principle.

There is a general (trivial?)understanding that subsidiarity implies
that the higher level of an organisation shall have or exercise only those
jurisdictions and function , which the lower level is unable to cope with
respective to the resolution of a specific issue or problem. The idea behind
subsidiarity is to save the existence and the function of lower level,
which is ultimately the individual person or at least the family involved.

This general concept appears to be unable to replace the existing legal
and social structures of governance in states, which provide individual
protection bases on a detailed constitutional or legal protective framework
of fundamental rights, respective protecting procedures organisational
structures, which appear to be more effective in so far. So the principle
of subsidiarity in the legal should not be related to the protection of
individual positions, though the papal encyclica "Quadragesimo Anno" of
1931 undoubtedly aimed at such a kind of protection for the individual
against totalitarian state suppression. It might be misleading insofar,
that the EU argues that subsidiarity could help to improve the understanding
and the acceptance of EU by the citizen. This focuses more the positive
political acceptance of the EU by the citizens in the interest of the EU
and their representatives than producing an advantage favouring of the
individual citizen..

So focussing the European discussion, the principle of subsidiarity
appears to concentrate on the relationship between the supra-national level
of the EU Authorities and the level of the member-states, which are in
terms of politics not all monolithic, but may dispose on various more or
less politically or in legal term independent sub-levels, so in particular
the federal states in member states with a federal constitutional structure
or the local government authorities, in so far as they dispose on proper
jurisdictions and powers.. So, an still unresolved issue is, whether the
subsidiarity, if applied for the relationship between EU and member states,
has to be applied as well to the internal structure of the governance,
organisation and administration of the member states themselves. This makes
clear that recognition of a principle of subsidiarity might have reciprocal
effects on both the relationship between EU and the member states on the
one hand and the internal constitutional situation on the other.3

Looking more closely on the specific case of the application of the
principle of subsidiarity within the EU it appears that the principle of
subsidiarity is used to cope with the contradictorily disputed , politically
still unresolved issue of the basic structure of the EU- government as
federal or quasi-federal or rather a far less obligatory form of co-operative
government.

The principle of Subsidiarity allows to avoid a clear political and
constitutional decision towards a potential federal structure of the European
Union. So central states, as Great Britain or France can keep internally
their centralised government structure and at the same time federal states
as Germany to can harmonise its internal federal constitutional structure
with the member state orientated EU- decision making procedures. In a way
the common specific political solution has been achieved based on a multi-purpose
concept of subsidiarity, a sort of an multi purpose umbrella concept, under
which many involved parties with various differing political interests
can meet.

4. The Range of Application for the Principle
of Subsidiarity

The provisions of the Treaty on the European Community (TEC)supplemented
by the Treaty on the European Union -TEU, which have amended the original
Treaty of Rome in major respect, do not at all draw a clear distinction
between the functions, powers and jurisdictions within the realm of the
EU authorities/bodies and the member states, so allowing the EU-authorities
a progressive extension of their responsibilities in pursuing .their political
goals. Major examples for the extension and the change a the EU- responsibility
respective to specific fields of political activity ,initially not explicitly
mentioned in the Treaties, are for instance the environmental policy and
the launch of a European Spatial Development Policy (ESDP).The extension
of the EU- responsibilities do not only apply to the political interests
of the EU .Commission, which has a strong position in the EU law making
process, but as well to other EU-bodies, as for instance the European Parliament,
which is interested to keep (and of course to extend ) the reached constitutional
position in the EU-decision procedure and so objects any re-transfers to
jurisdictions and powers to the member states.

The general rule in the Treaty ,which says that the EU can only act
within the framework of powers conferred upon the EU and of the objectives
designed to it(Art. 5 para 1 ECT, the so called principle of conferred
powers), appears to leave in principle all not explicitly transferred jurisdiction
to the member states. But the wording of this principle is misleading,
as actually it does not leave specific clear fields of political activity
undisputedly within the realm of the member states. There exist various
legal approaches to strengthen the EU- jurisdiction repective to those
remaining with the member states, which to describe it beyond this article.Anyway
, the basic realm of the principle of subsidiarity appears to rather restriced
regarding the general distribution of powers.

So, in the 90ies there has been a discussion whether the principle of
subsidiarity is at all a legal principle. But after various amendments
of the EU Treaty, which be reported in more detail below, the legal relevance
of the principle beyond doubt. But the question continues, what the core
issue of subsidiarity is in legal terms and if there is a substantial range
for the legal application.

In particular regional movements ( below EU- member state level), among
them the federal states within the Federal Republic of Germany tried to
use the launch of the principle of subsidiarity to extend their political
influence on the EU decision and law making process, but had to face much
(implicit) resistance from various actors on EU and on member states level.

5. EU-Efforts to Establish the Principle of Subsidiarity
while Restricting it at same time

The last decade has brought change to the EU in an unprecedented way.
The launch of the principle of subsidiarity in early 90th was
certainly not a key issue of the change. It was related to various other
issues, and in so far it is still today a part of more complex solutions
and compromises achieved.

Subsidiarity was first mentioned in the Preamble , that means outside
the explicit text,of the Treaty of the European Union (Maastricht, 1992)
4. This was followed by an explicit introduction of the principle in
Art. 5 of the Treaty of the European Community by the Treaty of Amsterdam,
1997 5. This amendment was supplemented by a Protocol on the application
of the principles of subsidiary and proportionality 6, which contained
additional procedural and material aspects how to practise the principle.
The Treaty of Nice (2000) resumed the topic of subsidiarity, stressing
that future conferences should deal in more detail with this issue. Reflecting
the principle of subsidiarity a more precise delimitation of powers between
the European Union and the Member to be established States is and monitored
7.

The amendments of the ECT/EUT mentioned before have been subjected to
various critical and sceptic considerations of politicians and lawyers.
Today it is accepted that he principle of subsidiarity is a legal, not
just a pure political principle, though its legal implications are uncertain
and difficult to define. So it is disputed, whether the principle touches
at all legal aspects of the distribution of powers and jurisdiction between
the EU and its member states, that means whether the principle implies
a modification of the system of jurisdiction and powers defined in the
treaties at all.. That is an point at issue in particular, because the
prerequisites for the application of the principle of subsidiarity as regulated
in Art. 5 (ex 3b) ECT and in the mentioned Annex Protocol No.30 are defined
in a way, which appear to leave existing distribution of powers in favour
of the EU virtually untouched. The mentioned criteria , as for instance
"exclusive competence (of the EU)" or "better achievement of objectives
on Community level by reason of scale or effects of the proposed action"
or "not calling in question powers conferred on the European Community
by the Treaty" focus more a stabilisation of the existing present distribution
of powers, than addressing a major change in respect to this.

That is, why lawyers recognise the principle of subsidiarity rather
as procedural rule, which will be specified in the procedural co-operation
of the various EU authorities and bodies, in particular the procedural
involvement of the Commission, the European Parliament and the Committee
of the Regions and the member or representatives of these bodies.

In addition to that the principle of subsidiarity implies a requirement
to consider on the part of the EU what would probably the best or most
efficient level of activity for a proposed action. This is only partly
a legal aspect, but has moreover political and administrative dimensions.
A rational assessment based on scientific methods would probably require
a valuation based on a kind of cost benefit analysis in order to control
whether a task or a power should be better undertaken on Community, on
member state or on sub-member state level. This in legal terms had to be
submitted to the control by the EU law court system in cases of dispute
and would imply a new dimension of law court control, which might rather
fit in the US judicial system than in the present European and EU judicial
system.

Anyway, a clear result of the political application of the principle
of subsidiarity in recent years was, as the EU-Commission emphasises in
various reports, that under the rule of the principle of subsidiarity the
number of regulations and directives issued by the EU considerably declined.
This appears a distinct response to the raised political demands for less
regulatory and administrative interference by the EU, though not directly
compatible with the more specific purposes originally pursued ( e.g. by
the German federal states) to introduce the principle into to political
and legal system of the EU.

6. Lessons from EU Experiences for International/Global
Governance

The experiences of the European Union with the introduction of the principle
of subsidiarity are that strong legal and administrative structures based
on agreed treatises and their application and practise will not easily
transformed into substantial changes or modifications through such a new
rather soft political and legal principle, as the principle of subsidiarity
is. This experience the EU might have in common with the principle of subsidiarity
contained in the papal Encyclica "Quadragesimo Anno", which according to
the retrospective valuation by one of its primary co-authors appeared 8
to
be rather a failure in the fight against totalitarian regimes in the pre-war,
war and post-war time of World War II, but which kept considerable importance
for the relationship between state and church respective to the provision
of social and educational services until the present day, as for instance
in the debate for state support of respective church run institutions or
at least taht the state abstains from parallel competitive activities in
these fields of church activities.

On the other hand the underlying philosophical, political and legal
roots appear to provide a substantial base, which tend to be underestimated
in its value and significance, if concentrating on a mere juridical interpretation.
As many major principles the underlying concept might be to a certain degree
indefinite, but nevertheless politically far-reaching. So the sceptic evaluation
of the principle of subsidiarity might be not justified.

In a way the principle of subsidiarity implies a denouncement of hierarchical
governmental structures, which are similarly pursued by other constitutional
principles as those of democracy, the rule of law, citizens participation
etc., which primarily apply to the internal constitutional and administrative
state structures, but are incompletely developed and do not appear directly
applicable in systems of international or even global governance or co-governance.
Subsidiarity appears to be a considerable "soft" instrument or principle
to launch steps toward a political share of responsibilities and powers
between the various levels of governance and de-bureaucratisation even
in international/supra-national dimension, launching new concepts of co-operation
between the various involved levels, including sub-state levels and , public,
quasi-public or even private involvement without having explicit democratic
organisational and procedural structures.

It would interesting to learn whether there exist also principles similar
to the more western orientated principle of subsidiarity even in other
cultures, e.g. in the Far East or the Islamic world, which could perhaps
be used a common base to effectuate a better reciprocal understanding of
the various cultural approaches otherwise clashing on the theatre
of international and global governance.

References

1 Article 23a para 1 of the German Federal Constitution
( Grundgesetz) :(1) To realise a unified Europe, Germany participates
in the development of theEuropean Union which is bound to democratic, rule
of law, social and federal principles and to the principle of subsidiarity
and provides a protection of fundamental rights essentially equivalent
to that of this Constitution.

5 Art.5 b ECT (Treaty establishing the European
Community) (according to the renumbering by the Treaty of Amsterdam, was
Art.3 b):

(1)The Community shall act within the limits of the
powers conferred upon it by this treaty and of the objectives assigned
to it therin.

(2) In areas which do fall within its exclusive competence,
the Community shall take action, in accordance with the principle of subsidiarity,
only if and in so far as the objectives of the proposed action cannot be
sufficiently achieved by the Member States and can therefore, by reason
of the scale or effects of the proposed action, be better achieved by the
Community.

(3) Any action by the Community shall not go beyond
what is necessary to the achieve the objectives of this Treaty

6Annex 30 of the ECT( amendment by the Treaty of
Amsterdam)

7 Treaty of Nice, Anex, 23rd Declaration on the
Future of the Union , No. 5. Subsidiarity is mentioned besides the Charter
of Fundamental Rights and the better simplification of the Treaties through
better standing without changing their meaning as major political issues
for the future.

8 Father Nell-Breuning, SJ, see: Gabriel, Karl
(2000)

Literature

(references without further details concern texts available
in the world wide web)

Backhaus, Jürgen C, Subsidiarity as a Constitutional
Principle in Environmental Policy, about 1998